Com. v. Pinkney, D.

• Court: Superior Court of Pennsylvania
• Decided: September 21, 2017
• Docket: 341 MDA 2017
• Status: Unpublished

Opinion

J. S58008/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : DANIEL PINKNEY, : No. 341 MDA 2017 : Appellant :

Appeal from the PCRA Order, January 27, 2017, in the Court of Common Pleas of Luzerne County Criminal Division at No. CP-40-CR-0001352-2009

BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 21, 2017

Daniel Pinkney appeals from the January 27, 2017 order denying his

second petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546, as untimely. Contemporaneously with this

appeal, PCRA counsel has requested leave to withdraw in accordance with

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

After careful review, we grant PCRA counsel leave to withdraw and affirm the

order of the PCRA court.1

The underlying facts and procedural history of this case were

summarized in the PCRA court’s May 26, 2017 opinion and need not be

1 The Commonwealth has indicated that it will not be filing a brief in this matter and is relying on the reasoning set forth in the PCRA court’s May 26, 2017 opinion. J. S58008/17

reiterated here. (See PCRA court opinion, 5/26/17 at 1-3.) In sum,

appellant filed the instant PCRA petition, his second, on August 12, 2016.

On September 8, 2016, the PCRA issued an order scheduling a PCRA hearing

and appointed counsel to represent appellant. Following a hearing on

December 28, 2016, the PCRA court dismissed appellant’s petition as

untimely on January 27, 2017.2 This timely appeal followed on January 30,

2017. On February 15, 2017, the PCRA court appointed instant PCRA

counsel, who subsequently filed a “no-merit” letter and a petition to

withdraw, in accordance with Turner/Finley, on July 19, 2017.

Appellant argues that the PCRA court erred in denying his petition as

untimely because his mandatory minimum sentence of 195 to 390 months’

imprisonment violated Alleyne v. United States, U.S. , 133 S.Ct.

2151 (2013), and this court’s subsequent decision in Commonwealth v.

Wolfe, 106 A.3d 800 (Pa.Super. 2014), affirmed, 140 A.3d 651 (Pa. 2016).

(Turner/Finley brief at 6-7.) Appellant further posits that Alleyne and its

2 It is undisputed that appellant’s instant PCRA petition, which was filed nearly four years after our supreme court denied his petition for allowance of appeal, is patently untimely. See 42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review[]”); Commonwealth v. Pinkney, 22 A.3d 1063 (Pa.Super. 2010), appeal denied, 27 A.3d 1015 (Pa. 2011). As a result, the PCRA court lacked jurisdiction to review appellant’s petition, unless appellant alleged and proved one of the statutory exceptions to the time-bar, as set forth in Section 9545(b)(1).

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progeny qualify as a newly discovered fact exception under

Section 9545(b)(1)(ii) that applies retroactively. (Id. at 5, 8.)

In Alleyne, the United States Supreme Court held that the

Sixth Amendment requires that “[a]ny fact that, by law, increases the

penalty for a crime is an ‘element’ that must be submitted to the jury and

found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2155 (citation

omitted). Thereafter, in Wolfe, a panel of this court held that the version of

mandatory minimum sentencing provisions set forth in 42 Pa.C.S.A. § 9718

that were in effect from January 1, 2007 until August 17, 2014, were

unconstitutional in their entirety in light of Alleyne and subsequent

decisions by this court. Wolfe, 106 A.3d at 806 (citations omitted).

Instantly, appellant was sentenced on December 3, 2009, and

Alleyne, in turn, was decided on June 17, 2013. Contrary to appellant’s

contention, our supreme court has expressly rejected the notion that

Alleyne applies retroactively to collateral attacks on mandatory minimum

sentences advanced in PCRA proceedings. Commonwealth v.

Washington, 142 A.3d 810, 814-815 (Pa. 2016); see also

Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa.Super. 2015) (holding

that Alleyne did not apply retroactively in a PCRA setting, where Riggle’s

judgment of sentence became final 15 months before the Supreme Court

decided Alleyne in June of 2013). Furthermore, it is well settled that

Alleyne does not invalidate a mandatory minimum sentence when

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presented in an untimely PCRA petition. Commonwealth v. Miller, 102

A.3d 988, 994-995 (Pa.Super. 2014). Accordingly, we agree with the PCRA

court that Alleyne and its progeny do not apply retroactively to the instant

matter, which was already at the PCRA review stage at the time Alleyne

was decided.3

Based on the foregoing, we discern no error on the part of the PCRA

court in dismissing appellant’s petition, and grant counsel’s petition to

withdraw.

Order affirmed. Petition for leave to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/21/2017

3 In reaching this decision, we further note that PCRA counsel’s “no-merit” letter and petition to withdraw from representation comply with the requirements of Turner/Finley. See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003) (stating that substantial compliance with requirements will satisfy the Turner/Finley criteria).

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